Whether the Department was justified in refusing to confirm or deny the existence of records relating to requests for the provision of information regarding the applicant, as initiated by the authorities in a certain country, whether made pursuant to international Mutual Legal Assistance Conventions, the Criminal Justice Act 1994 or any other statutory authority.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

The relevant element of the applicant's FOI request of 28 May 2009 sought "all records of any nature or kind relating to [him] and held by [the Department] including but not limited to ... [a]ll requests and responses to requests of any nature or kind for the provision of information regarding [him] to the authorities, of whatever nature or kind, in any third Country whether made pursuant to international Mutual Legal Assistance Conventions, or pursuant to the Criminal Justice Act 1994 or other statutory authority whatsoever."

The Department's decision of 25 June 2009 refused to confirm or deny the existence of such records under section 23(2) of the FOI Act, which refusal was upheld in its internal review decision of 10 August 2009 (further to the applicant's internal review application of 21 July 2009). On 18 August 2009, the applicant sought a review by this Office of the Department's decision on his request.

In carrying out my review, I have had regard to the above correspondence; to details of contacts between this Office and the applicant, particularly a letter sent to him by Ms Anne Lyons, Investigator, dated 19 November 2012 (to which I will refer in the remainder of this decision as the "preliminary views letter") and his response dated 5 December 2012; and to details of various contacts between this Office and the Department. I have also had regard to the relevant provisions of the FOI Act.

Scope of the Review

Ms Lyons' preliminary views letter said that, for convenience, she would refer to "requests ... for the provision of information regarding [the applicant] whether made pursuant to international Mutual Legal Assistance Conventions, or pursuant to the Criminal Justice Act 1994 or other statutory authority whatsoever" as "requests under the MLA processes". I will do likewise in this decision. Ms Lyons also noted that the application to this Office specified that the applicant was seeking records concerning any requests for information initiated by the authorities [of a certain country] (under the MLA processes). Appropriately, she explained that the scope of this review is confined to the sole issue of whether or not the Department was justified in refusing to confirm or deny the existence of such records.

Ms Lyons told the applicant that section 8(4) does not allow this review to have regard to any reasons as to why he is seeking such records. She also told him that, while the FOI Act requires reasons to be given for decisions issued by this Office, section 43(3) of the FOI Act requires that all reasonable precautions must be taken in the course of the review to preserve the Department's right of appeal to the High Court on a decision that might be made to the contrary of its position.

Findings

Section 23 of the FOI Act
Section 23(1)(a)(i) provides that a head of a body may refuse a request for a record if its release, in the opinion of the head, could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.

Section 23(2) provides that a head shall refuse to disclose whether or not a record exists where section 23(1) of the FOI Act applies to that record, or would apply if it existed, and where the head is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (aa), (a), (b) or (c) of section 23(1).

Ms Lyons' preliminary views letter explained that she understood that the MLA process involved the authorities in one country being formally asked by the authorities in another country to obtain and provide evidence for the purposes of a criminal investigation being conducted in the latter country. She said that, to decide if the Department's decision was justified, it must firstly be considered whether any relevant records, if they existed, would ordinarily be likely to be exempt under the provisions of section 23 of the FOI Act.

She noted that the wording of the Department's decision reflected the consideration of section 23(1)(a)(i) of the FOI Act in the first instance and said that, generally speaking, she would accept alerting a person that they were under investigation could cause that person to try to avoid further monitoring, or to destroy or tamper with evidence, and so could reasonably be expected to prejudice the investigation concerned. She said that she would thus accept that section 23(1)(a)(i) of the FOI Act would apply to records that would show that someone was being investigated. Ms Lyons then noted the applicant's contention that, although covert investigations are normally confidential, confidentiality cannot be invoked by the Department simply because of the normal confidentiality of the MLA processes. She said that she considered the relevant issue to be the extent to which the disclosure of information sought could reasonably be expected to prejudice any related investigation, or the procedures employed for that investigation, and in turn require confidentiality. She said she accepted that confirmation of the existence of records relevant to the MLA process as initiated by a specified country would disclose, at the very least, the existence of an investigation(s) in that country. Ms Lyons said she accepted that such disclosure could reasonably be expected to prejudice that investigation and/or the procedures being used therein.

Ms Lyons then went on to explain why she felt it generally appropriate for the Department to rely on section 23(2) in respect of FOI requests for records concerning requests under the MLA processes. She said that if the Department were to confirm the lack of records, to persons in respect of whom no request(s) under the MLA processes have been made, then any refusal by the Department to confirm or deny the existence of records in other cases could reasonably be expected to indicate to those other requesters that they were the subject of a request(s) under the MLA processes.

Ms Lyons then dealt with the specific arguments made in the application to this Office. One was to the effect that necessity for confidentiality ceased once the Department "discloses the fact of the investigation and the fruits of that investigation, whether to the affected party or otherwise". The applicant said it "appear[ed]" that the Department had voluntarily made information regarding him available to the authorities in [the particular country], and had provided Garda witnesses to give evidence in proceedings in that country. He also argued that any investigation into his activities must have concluded as his extradition had been sought via a European Arrest Warrant (EAW), in which case the Department's refusal to confirm or deny the existence of records for the reasons set out above was irrelevant.

Ms Lyons said she considered there to be no evidence before the Commissioner to support any contention that it is a matter of record that the applicant was the subject of any request under the MLA processes or that the Department had made information so available. She said she considered the giving of evidence by members of An Garda Síochána to be irrelevant in light of the Department's argument that it is open to anyone in this State to give evidence in a foreign country if they wish. She also told the applicant that the Department had said that the issue of an EAW does not of itself mean that a request under the MLA processes has issued, nor does it preclude the existence of an ongoing investigation in another country (which could be prejudiced if its existence was confirmed). Her preliminary view was that, given the resulting impact that confirmation of the existence or otherwise of such records could reasonably be expected to have on the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid, the Department was justified in relying on section 23(2) of the FOI Act in this case.

I concur with Ms Lyons' views as set out above.

The applicant's reply of 5 December 2012 contained a number of arguments that are irrelevant to my consideration of whether or not sections 23(1)(a)(i) and 23(2) are relevant in this case (i.e. relating to the normal discovery processes that would apply if he was being prosecuted in this country; his need to challenge any material that may have been provided to the foreign authorities under the MLA process; and the evidential advantage he considers to be served to the prosecuting authorities by proceedings being brought in a country other than Ireland).

He again argued that the Department would not be entitled to rely on section 23(1)(a)(i) where it provides evidence to another country, and, accordingly, would "waive entirely any statutory or common law privilege that [it may previously] have enjoyed". However, generally speaking, I see no reason to accept that the provision of evidence by the Irish authorities to the authorities in another country, in any case, for a limited purpose in accordance with the MLA process, would of itself remove the need to keep any related investigation(s) secret from those under investigation. Neither do I see any reason to accept that sections 23(1)(a)(i) and 23(2) are concerned only with investigations that take place in this State.

The applicant also reiterated his view that any investigation is at an end in light of the issue of a request for his surrender for trial (i.e. the EAW). However, this contention is not sufficient for me to reject Ms Lyons' views that the issue of an EAW does not preclude the existence of an ongoing investigation in another country, which could be prejudiced if its existence was confirmed, nor does it mean that a request under the MLA processes has issued in the first place.

The applicant contended that "it has been acknowledged in separate proceedings before the Irish Courts that ... records [of requests made by the authorities in the particular country under the MLA processes, and the ensuing responses] exist". However, he has not provided this Office with any evidence of the fact, or extent, of such "acknowledge[ment]" and thus, I have no reason to dispute Ms Lyons' view regarding the lack of evidence to support his contention that it is a matter of record that relevant records exist.

Finally, the applicant referred to the February 2012 judgment of the Supreme Court in the Damache case, which found that searches carried out under section 29 of the Offences Against The State Act are unconstitutional and that material so gathered cannot be said to have been obtained in accordance with the law. In this regard, he quoted the wording of section 23(3)(a)(i) of the FOI Act, which provides that section 23(1)(a)(i) does not apply to a record if it "discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation, or for the purposes of the prevention or detention of offences or the apprehension or prosecution of offenders is not authorised by law or contravenes any law".

Firstly, even where section 23(3)(a)(i) applies, one must also consider section 23(3)(b), which requires the head to form an opinion as to whether the public interest would, on balance be better served by granting than by refusing to grant the request concerned. Secondly, it has not been explained to me how the Damache judgment is of relevance to this review, or how it may have any general relevance to actions carried out further to requests for assistance under the MLA process. Thus, I have no basis to accept that section 23(3)(a)(i) may be relevant due to the Damache judgment, in which case section 23(3)(b) need not be addressed.

In short, I agree with Ms Lyons' general views as to why records relating to requests under the MLA processes, if they existed, would be exempt under section 23(1)(a)(i) in the first place, and as to why disclosure of the existence or otherwise of such records would have the effect specified in section 23(1)(a)(i) such that section 23(2) is applicable. As the applicant has not given any evidence of his contentions that it is a matter of public record that any such requests were received and/or acted upon, I therefore find that the Department's reliance on section 23(2) is justified in the circumstances of this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal to confirm or deny the existence of records under section 23(2) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
17 December 2012